International law in an area that has been of great importance in recent times as it regulates the relations of States, IGO’s, NGO’s and individual persons in their dealings with one another. International law as it is seen in modern times has gone through several developmental states to achieve its present status. There have been several modifications in the scope and subjects of international law as time passes by.
This article divides the growth and development of international law into four main phases. The first phase starts with the peace agreements that was made in Europe after the thirty years war, followed by the second phase with begins after the first Word War and then the third phase which begins after the Second World War and finally the last phase which refers to the aftermath of the Second World War till date. The last part of the article looks at the future of international law and it does this by situating the future of international law in the question as to whether international law is dying or not.
The interaction among countries is regulated by international laws and customs and it is for this reason that international law serves a great purpose as far as the international interaction among states is concerned. No country can leave in isolation without depending on other countries for raw materials, national resources, and technological know-how among others and hence there is the inevitable need for countries to depend on one another for survival. This interaction and to a large extent trade relations among member countries, therefore, needs to be guided by some laws which will help to ensure that such interactions are on a peaceful basis with without chaos or possible violence in the international system and hence its essence in contemporary times. Laws that governs relations among states, IGO’s, NGO’s and individual has developed from one stage to the other with significant improvements and changes in their scope and applicability.
Definition of international law
International law was first developed to govern the relations among sovereign countries and as such it was referred to as The Law of Nations. That is to say that a set of rules and regulations meant to regulate the relations among sovereign and civilized states with their dealings and activities among themselves.
This is a narrow definition and viewed by scholars as the traditional definition of international law. Obviously, there are a lot of grey hairs in this definition of international law as it is difficult to determine which state is civilized and which state is not and more importantly, the scope and subjects of international law have in modern times widened to govern the relations of not only sovereign states but that of Non-Governmental Organizations, International Governmental Organizations, and even individual persons as well.
With the proliferation of Non-Governmental organizations (NGO’s) most probably after the WWII as well as the business transactions, agreements and contract among persons, the scope, and definition of international law have widened to cover, NGO’s and even persons as well. In modern times it is defined as a body of rules and principles that govern the relations among States, International Governmental Organizations (IGO’s), NGO’s as well as individual persons in the relations among each other (Egede & Sutch, 2013). This definition of international law is mostly referred to as the modern definition as it expands the scope and focus of international law.
Growth and development of international law
The expansion and development of international law can be divided into four main phases:
The first Phase
The first and perhaps most important phase in the development and expansion of international law began with the Peace of Westphalia which was a peace treaty signed to end the thirty years war that was fought in Europe from 1618-1648. The main participants in that treaty were France and Sweden on one side with their opponents Spain and the Holy Roman Empire on the other side. By the terms of the treaty, each state was to be recognized as sovereign and independent of the Holy Roman Empire making the Holy Roman emperor virtually powerless which subsequently led to the collapse of the Roman Empire.
This event is very important as far the development of international law is concerned as it is seen as the beginning of the concept of sovereignty and independence of states in international law. The treaty conferred sovereignty of all participating states which should be given full recognition by the other members and this concept has remained and perhaps been modified until present times. The Sovereignty and independence of states is a very important concept in contemporary international relations as it entitles each state to be responsible for their internal affairs which should not be infringed upon by other states. By, implication, therefore, it meant that member States are to acknowledge the territorial boundaries of others and not interfere in the affairs of other members in any way.
Also since the thirty years war, which was fought in Europe at that time was both a religious and political war, it was, therefore, important to acknowledge the religious and political freedom of individual as it became obvious that, if individuals are oppressed religiously or politically they will always revolt. The peace treaty which ended the thirty years war thus made provision for such concepts as freedom of association and religion which have also been an important concept in recent international humanitarian laws. Thus, concepts such as freedom of association and religion which form the basic backbone of most humanitarian laws could all the traced back to this peace treaty.
However, the problem that was unsolved by the peace agreement was that the peace agreements reached failed to establish an institution that is expected to be responsible for ensuring that these agreements reached among nation were to be followed without any breach so eventually most of the agreements reached was breached which subsequently lead to Word War 1 and subsequently leading to the second developmental phase.
Eventually, the peace agreements hat were reached was not able to maintain the everlasting peace in Europe as expected and as such between 1914 to 1918, there was World War 1. In 1919, the treaty of Versailles was reached between Germany and its allies on one side and Great Britain and it’s allied on the other side to bring an end to the World War one. At the treaty of Versailles, a proposal was made to create an independent organization to ensure that the agreements made in the treaty are held up in high esteem by all members and this subsequently lead to the creation of the League of Nations in 1920. An important point to note here is that with the creation of the League of Nations, international laws and standards were agreed by member countries as to how the League of Nations should function which is a shift from international law governing the relations among states alone as it seen in the traditional notion to governing the function and relation of an International Organization which in this case is the League of Nations.
Under this treaty, Germany was made to give full recognition and unconditional sovereignty to Belgium, Poland, Czechoslovakia (currently referred to as the Czech Republic and Slovakia), and Austria. The functions, scope, and operations of the League of Nations was governed by rules and regulations agreed upon by member states. The league of Nation could not maintain world peace as expected with could be attributed to several reasons of which the refusal of a powerful country like the United State of America to join could not be ruled out. The refusal of USA to join the League, in fact, rendered the League powerless leading to its collapse and subsequently resulting to World War II fought from 1939-1945.
With the failure of the League of Nations to maintain world peace and subsequently leading to World War II, which was partly due to the fact the Germany was not satisfied with most of the provisions of the treaty of Versailles as Germany was of the view that the treaty was not fair to them and that all effort were intentionally made by that treaty to render Germany powerless and weak (Boemeke, & Feldman, 1998). The Paris peace treaty was therefore signed on the 10th of October in 1949 to bring an end to the Second World War which had led to the destruction of thousands of life, property and materials all over the World. The United Nation was afterward created as an International Governmental Organization to maintain world peace and ensure peaceful coexistence among member countries.
An important point to note is that in this phase as well the scope of international laws has moved from governing the relations between Sovereign states to regulating the conduct and behavior of an International Governmental Organization. It is also important to note that from this phase, with the collapse or failure of the League of Nations, it become important to find out why the League could not perform as expected and several factors were discovered as the reasons for the Leagues failure however, it became obvious that the refusal to get on board powerful countries like the United States was an obvious factor which had a great blow on the powers and function of the League and subsequently leading to its failure.
Also, it was realized that taking decisions quickly on matters of great concern in the League was difficult due to the fact that all members had equal votes in the League and because of different interest by different states it was difficult to reach consensus on an issue that needed immediate actions. It was for these reasons that with its creation, efforts were made to get all powerful countries on board and also the permanent five members of the Security council was created so that these permanent five members could take quick decisions on matters of immediate concerns that needed immediate actions.
Again there was the need to ensure some sought of fairness in dealing with all members in the making of treaties or laws to govern the activities of member states as it was realized that Germany discontentment of the Versailles treaty was also key factor that prompted Germany to revolt as all efforts to seek for reforms in the Versailles treaty was not successful which eventually led to the Second World War. In this regard, during the process of treaty making, conscious efforts are made to ensure that all countries have their national interest featured in one way or the other so that no State will feel been cheated or will have the feeling that their interest has been sabotaged in any way. All these developments have helped shaped and expand its scope in present times.
The fourth stage
The last developmental stage is the period after World War two until the present day. After WWII, the world witnessed a drastic increase in the number of NGOs springing up on a daily basis both locally and internationally. The activities and operations of these NGO’s especially the international ones are also to a large extent are governed by International law. These NGO’s operate within the larger framework of international and ensures that their activities do not infringe on any international law for that matter. NGO’s possesses legal personality and as such they have the right to sue and sued at an international court which therefore implies that if their activities in any way breach any international law, they are liable for their offense and will be held accountable in that regard.
Furthermore, after WWII, the world also witnessed business transactions not between states alone but also between individuals of different nations and as such there was also the need to come out with international laws that will govern such relations between people as well. It is in this regard that a branch of international law called private international law came into being. Thus the need to get standard rules and regulations to govern the relations of individuals from different countries as they trade among themselves on the international level led to the emergence and development of private international law. Different states have their own laws that regulate trade activities and business in the domestic level and this has the possibility of resulting to misunderstandings between business partners as to which state laws should be applied in situations of disputes and hence the essence of private international law.
The point to note here, therefore, is that the scope and function of international law in the fourth stage which refers to the aftermath of the WWII till present day has widened. International law not only regulates the behavior, relations, and affairs of sovereign states, IGO’s, NGOs but it also regulates the relations between private persons as well. Day in and day out, there is always an improvement in both private and public international law so as to help maintain the relations of all the subject of international law in a peaceful and cordial manner.
The future of international law
The future of international law can be analyzed from two different perspectives and in order to be able to give a detailed account of these perspectives, we will ask the question “Is international law dying? The first perspective on the future of international law is the school of thought that believes that international law is dying and the reasons that this school advances to support their arguments are:
Firstly, this school of thought argues that the current world order is in flux: The United State of America, for example, is been at war continuous since the beginning of the twenty-first century and in most cases the reasons advanced by the United State of America to support such war is the belief that such wars are in their national interest or when the USA feel that their National interest is threatened or is at stake if such wars are not carried out. A typical instance, in this case, is the USA invasion of Iraq in 2003 even when the USA was not granted the rectification to go-ahead to embark on that war. There is probably little chance that the state of continuous war will end anytime soon and that the world has to kind of adjust to the notion that there is always the possibility of the occurrence of war. The consequence of the possibility of the occurrence of such constant war between states in international law is that Military solutions in setting dispute will be given much priority than diplomatic means of settling a dispute which is not what international law advocates for.
Also, the European powers that were one of the strongest world’s nations have now come together to form the European Union to maintain some influence on the state of the world by way of increasing economic integration and strengthening corporation among member states and to a large extent protect the interest of Europe. One cannot predict the ideas of what Russia wants or what it intends to become in the near future. Tracing the relation between Russia and the USA back to the Cold War era where there was a great tension between these two countries and Russia eventually collapse leaving the USA to be the Worlds super power. Some years later, however, there was a much more peaceful corporation between the USA and Russia who was more or less like allies but in recent times, that corporation is no more but rather a kind of antagonistic relation between the two countries. The future intention of Russia in this sense is unpredictable. Is it going to be Russia and Europe or Russia has the intentions of rising up again against the United State in the future?
A country like the Peoples Republic of China which in recent times has emerged as a strong economic power in the world also might have its intentions as far as becoming the world’s superpower is concerned. Would china be rising up to contest the USA in becoming the World’s super power? What do countries like The People’s Republic of China, India and Russia want to become or achieve in the near future especially with regards to the current state of USA as the world’s superpower is not certain. The Middle East is in a constant state of turmoil which is not likely to end in anytime soon.
A critical observation of all these events and occurrence happing in the world proves that the system of the world that international law sought to create after world war two is not what is been seen in modern terms and as such this school of thought argues that international law is dying because the systems that it is based on are gradually fading away.
Secondly, international law is primarily based on western ideas. It was based on Western principles and ideas. Sources of international law have primarily been western in nature. For example, when we talk about customary international law, we are actually referring to customs that happened in the West and not what happened in Asia, Africa or other parts of the world. Again when we talk about general principles, we are talking about the general principles of the West and not that of any other countries outside the West. So basically international law was based on Western legal traditions however in the current world of one hundred and ninety-two (192) countries, the relevance and influence of Western ideas and beliefs on which international law is built on is to a large extent of no influence anymore and as such international law is dying because the basis of its foundation is dying.
Also, the Sate which previously used to be an important institution as far as international law is concerned is primarily fading off. That is to say that the state used to be the main actor in international laws but increasingly becoming less important as its role as gradually fading off. For example, the attack on the USA on 11th September 2001 was carried by a non-state entity, a group called Al-Qaida to be specific. Al-Qaida operates across state borders and as such one cannot empathically point to one state has been responsible for harboring such groups. After the incident on 11th September 2001 for instance, the foreign policy of USA changed from placing emphasis on State oriented policies to a more individual or groups oriented policies to the extent that a huge sum of money was placed on the head of Usama bin Laden to be given to any person or individual who could provide intelligence on the whereabouts of Usama bin Laden. Bin Laden was in fact placed on the ten most wanted fugitive list of the United States.
The above-stated points and others perhaps are the reasons been advanced by some scholars that international law is dying.The second school of thought argues that international law is not dying but rather is becoming much stronger than it even used to be.
Firstly, this school of thought argues that European countries, for instance, has over the centuries been at constant war with one another but in recent times, a great harmony exists between European countries to the extent that the Europeans countries have come together to form a Union governed by International laws. Despite the fact that the European countries are facing some problems with single currency: Euro, countries are willing to even give part of their sovereignty away so as to be part of the European Union. The point here is that this corporation between several countries in Europe will probably have not been possible some centuries back. Before the introduction and acceptance of international law in Europe, the continent was in turmoil to which one could hardly think of getting a possible solution to it but now the region has experienced constant peace and corporation over the years.
Also, a powerful country like the United State of America which is the world’s superpower and with a strong military and army which they could use to wage war on any country is not probably able to do so because it is constrained by some international customs and conventions. An instance is when the United States went to the Security Council to seek a resolution so as to enable it to go to war in Iraq in 2003 which to a large extent the USA in previous time will not have done. The argument here is that before the introduction of such laws and conventions, the United States as powerful as, will wage war on a country without going to any IGO to seek a resolution before it could that.
Although the USA was refused that resolution, it still went ahead to invade Iraq in 2003, whenever scholars accuse the USA of breaching international norms and conventions, the USA almost always comes out to defend their stands of not breaching any laws but their actions were informed by the threat on their National interest and probably their intelligence was wrong. Thus, international customs restricts countries in their behavior or relations with other countries in modern times which were not the case some years back. Additionally this school of thought argues that at the initial stages of the introduction and development of international laws, strong countries like USA and Russia during the cold war era will either openly or secretly support a rebel group to overthrow a democratically elected government in order to get such countries to practice their ideologies, however, in recent times, such countries cannot act in this manner anymore as it will be seen as a breach of international accepted standards of state behavior and the whole World will frown on such acts.
Furthermore, the economic corporation in recent times is higher than ever. International rules and regulations that govern and regulates trade among countries are much stronger than it is used to be. For example, a treaty called the Convention on Contract for the International Sale of Goods (CISG) signed in 1980 which is the treaty that governs that worldwide sale of goods and has created a legal infrastructure that supports the global economy (Lookofsky, & Bernstein, 2002). Thus, commerce has increased in a much more peaceful and corporative manner with the presence of international laws. Free trade is seen by many as the best and most effective way of trade and in recent times, one can argue that with institutions like the World Trade Organization (WTO) among others, there is an increase in free trade than before.
Additionally, international law is flexible and its flexibility, therefore, implies that it can adapt to cover the changing circumstances and occurrences in the world. That is to say that if there are certain events or some specific new developments in the interaction among states and other subjects of international law that are not covered by international conventions and agreements but it has become necessary to have rules and regulations to cater for those areas, then its scope of will expand to cover those areas. Treaties could be reached between countries to cater for certain aspects that previous treaties could not cover. For example International Commercial Terms (INCOTERMS) were first introduced in 1936 by International Chamber of Commerce (ICC) to govern the responsibilities of sellers and buyers in international contracts of sale however due to new developments and changes in trade that occurs as times passes by, INCOTERMS have been revised in 1953, 1967, 1976, 1980, and 1990, 2000 and currently in the year 2010.
Finally, the argument that the state is dying or fading away is also a fraud because the state is not dying and cannot fade away. The institution of the Nation or the State is the principal means of governance around the world and there is no indication that the State is going to end anytime soon. The states continue to be the major player in the international system and its role is still important as far as international law is concerned.
In conclusion, therefore, one can argue that international law is of great importance as far as interaction on the international level is concerned as it governs and regulates the behavior of sovereign states, inter-Governmental Organizations, NGO’s and individual persons in the process of dealing with one another. Its development has gone through a number of stages as it is currently seen in modern times and to a large extent, international law is becoming much stronger than it used to be at its initial stage of introduction. This is evident in numerous instances as all States, IGO’s, NGO’s and persons give recognition to the existence of such international law and conventions which they try not to breach.